Introduction

Evidence is a word that most of us use casually and frequently; it is a concept with which we are all intuitively familiar, and most of us use the word routinely outside any legal context. ‘Where’s the evidence for that?’ ‘Show us some evidence and then we’ll accept it!’ ‘Evidence’ suggests that we are not simply prepared to believe a proposition; we want to be presented with some sort of information, outside the proposition itself, to convince us that it is true.

The meaning of the word ‘evidence’ in a legal context is almost the same as in the general, everyday context.

Any legal dispute – whether before a court or not – will be contested by two or more parties who have a different view as to what happened in the course of their dispute. To determine a just outcome to the dispute, the legal process needs a way of answering a fundamental question: What happened? Evidence law, combined with civil and criminal procedure, provides the legal structure to determine this question.

Evidence law can sometimes be a frustrating area of law for students to study. While the laws of evidence have been formulated to assist courts to provide justice, it can often seem that they have the opposite effect. For instance, the laws of evidence may exclude, on what appear to be very technical grounds, a piece of evidence which (if accepted) would have been compelling. The exclusion of that evidence may result in a legal win, but a practical injustice. The rules of evidence assist the court by allowing access to sufficiently reliable information with which to make its decisions. It is important to understand the purpose of each of the rules we discuss; and to understand that purpose in the context of the fundamental task of assisting the court to come to the best, most reliable understanding of the basic question: What happened?

The goals of evidence law are: factual accuracy, efficiency, fairness, and institutional integrity, in the context of an adversarial system.

Reading:

Field Textbook, [1.1]-[1.9], [1.45]-[1.105] (Required)

Eilis Magner, ‘The Best Evidence – Oral Testimony or Documentary Proof?’ (1995) 18 University of New South Wales Law Journal 67 (Recommended)

Objectives

After studying this week’s material, you should be able to:

• identify the role of evidence in the legal reasoning process;
• describe the difference between facts, information and evidence;
• distinguish, in general terms, between testimony, documentary evidence and real evidence;
• identify the burdens and standards of proof which apply in different legal circumstances;
• identify the ways in which evidence can become the basis for adversarial contention in a courtroom;
• identify Queensland legislation relevant to evidence law; and
• distinguish between common law, Queensland Evidence Act and Uniform Evidence Act schemes of evidence.

Summary

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Tutorial

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Version

This unit was last updated on 28.10.2019